People ex rel. Gauen v. Niebruegge

• Decision Date: 16 February 1910
• Parties: PEOPLE ex rel. GAUEN, State's Atty., v. NIEBRUEGGE et al.
• Court: Illinois Supreme Court

244 Ill. 82

91 N.E. 115

PEOPLE ex rel. GAUEN, State's Atty.,

v.NIEBRUEGGE et al.

Supreme Court of Illinois.

Feb. 16, 1910.

Error to Circuit Court, Monroe County; George A. Crow, Judge.

Quo warranto by the People, on the relation of Roy E. Gauen, state's attorney, against Henry Niebruegge and others. From a judgment in favor of defendants, plaintiff brings error. Affirmed.Roy E. Gauen, Joshua Wilson, and Charles Erd, for plaintiff in error.

A. C. Bollinger, for defendants in error.

CARTER, J.

This was an information in the nature of quo warranto filed by the state's attorney of Monroe county in the circuit court of said county on March 11, 1909, at the request of nine owners of lands, questioning the legality of the organization and existence of Moredock & Ivy Landing Drainage District No. 1 of Monroe county, Ill., and the right of the defendants in error, Henry Niebruegge, William Feldmeier, Sr., and John Herbst, to hold the office of drainage commissioners of said district. Defendants in error entered their appearance and filed a plea to the information, to which plea plaintiff in error demurred. The demurrer was overruled, and plaintiff in error elected to abide by his demurrer and declined to plead further. Thereupon the trial court entered judgment in favor of defendants in error, finding that they were not guilty of usurping the office of drainage commissioners, as charged in the information. Plaintiff in error has sued out of this court a writ of error to review the judgment. By the demurrer the facts stated in the plea were admitted to be true. Do such facts present a good defense to the information?

It is first insisted that said drainage district was never organized in accordance with law. It is stated in the plea that on April 6, 1882, a petition was filed in the county court of said Monroe county proposing to establish a drainage district, to be known as Moredock & Fish Landing District No. 1, Monroe county, Ill.; that said petition was signed by a majority of the adult landowners of said proposed district representing onethird or more in area of land, as required by the statute then in force (Bradwell's Laws 1879, p. 98, § 2); that on May 15, 1882, the county court entered an order finding that due notice had been given as required by statute and the requirements of the law complied with, and that thereupon said court appointed three persons to act as commissioners; that thereafter, on October 16, 1882, said commissioners reported to the court recommending that the work be executed. This report was signed by these men as ‘commissioners of Moredock & Ivy Landing Drainage District No. 1 of Monroe county, Illinois.’ The plea further states that said Ivy Landing and Fish Landing were one and the same place, being synonymous terms, and from that time to the present all proceedings of said proposed district had been carried on under the name of ‘Moredock & Ivy Landing Drainage District No. 1 of Monroe county, Illinois'; that on November 20, 1882, the report of said commissioners was duly confirmed by the said county court after objections filed thereto had been overruled.

The levee act, as enacted in 1879, did not provide for changing the name of a district. In 1881 section 12 of that act was amended, providing, among other things, ‘the court may change the name of a district, or proposed district, at the same time and in the same order establishing a drainage district, the boundaries of which shall have been changed as aforesaid.’ Laws 1881, p. 82. This section as then amended, providing for changing the boundaries and amending the name, read substantially the same as section 12 of said act now reads. Hurd's Rev. St. 1908, p. 820, c. 42. From the facts set up in the plea of defendants in error we think it is obvious that the court in organizing the district changed the boundary lines on the recommendations of the commissioners, and also changed the name by the same order. This the court had authority to do undersaid amended section 12. Moreover, the plea further states that the district has been known by the name of Moredock & Ivy Landing Drainage District No. 1 ever since that time. Proceedings affecting the interests of that district have been twice brought to this court under that name. Gauen v. Moredock & Ivy Landing Drainage District, 131 Ill. 446, 23 N. E. 633;Winkelmann v. Moredock & Ivy Landing Drainage District, 170 Ill. 37, 48 N. E. 715. The plea also stated that the county court found, in the order organizing the district, that it had jurisdiction of the parties and the subject-matter. Having such jurisdiction, the judgment order, even though erroneous, cannot be set aside by a proceeding in the nature of a quo warranto. People v. Waite, 213 Ill. 421, 72 N. E. 1087;People v. Munroe, 227 Ill. 604, 81 N. E. 704.

It is next insisted that the rights and franchises of this district were dormant for many years, and that on that account a dissolution of the corporation should be declared and its charter forfeited. It appears from the facts set up in the plea that the district was in active operation from 1882 until 1897. At the last-mentioned date three commissioners were acting. No annual reports were made by the commissioners thereafter until 1908. From the record of proceedings in the county court as to this district, as set out in said plea, it is not entirely clear whether any commissioners were appointed by the court from 1897 until 1908. In September of the year 1908 a petition was filed in the county court of Monroe county, signed by 27 landowners of said district, requesting the court to appoint three persons as drainage commissioners. After a hearing on this question the court appointed the three defendants in error.

It has been held by this court that drainage districts should be classed as municipal corporations. Commissioners of Drainage District v. Kelsey, 120 Ill. 482, 11 N. E. 256;Elmore v. Drainage Com'rs, 135 Ill. 269, 25 N. E. 1010,25 Am. St. Rep. 363;Badger v. Inlet Drainage District, 141 Ill. 540, 31 N. E. 170. In Dillon on Municipal Corporations (volume 1 [4th Ed.] § 168, p. 245) that author states that the doctrine of forfeiture of the right to be a corporation has no just or proper application to municipal corporations, and ‘if they neglect to use powers in which the public or...